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NHTSA Proposes Guidelines for Electronic Devices in Vehicles

November 23, 2016–The National Highway Traffic Safety Administration (NHTSA) today released proposed guidelines to address driver distraction caused by mobile phones and other electronic devices brought into vehicles after they are manufactured. The guidelines drew concern from the consumer electronics, wireless, and auto industries. The voluntary standards would be the second phase of such guidelines. The first phase was released in 2013 and focused on devices and systems built into vehicles (TRDaily, April 23, 2013).

“As millions of Americans take to the roads for Thanksgiving gatherings, far too many are put at risk by drivers who are distracted by their cellphones,” said Transportation Secretary Anthony Foxx. “These commonsense guidelines, grounded in the best research available, will help designers of mobile devices build products that cut down on distraction on the road.”

“NHTSA has long encouraged drivers to put down their phones and other devices, and just drive,” said NHTSA Administrator Mark Rosekind. “With driver distraction one of the factors behind the rise of traffic fatalities, we are committed to working with the industry to ensure that mobile devices are designed to keep drivers’ eyes where they belong—on the road.”

“The proposed, voluntary guidelines are designed to encourage portable and aftermarket electronic device developers to design products that, when used while driving, reduce the potential for driver distraction,” NHTSA noted in a news release. “The guidelines encourage manufacturers to implement features such as pairing, where a portable device is linked to a vehicle’s infotainment system, as well as Driver Mode, which is a simplified user interface. Both pairing and Driver Mode will reduce the potential for unsafe driver distraction by limiting the time a driver’s eyes are off the road, while at the same time preserving the full functionality of these devices when they are used at other times.”

The notice released by NHTSA observed that last year, “10 percent of the 35,092 traffic fatalities involved one or more distracted drivers, and these distraction-affected crashes resulted in 3,477 fatalities, an 8.8 percent increase from the 3,197 fatalities in 2014. Of the 5.6 million non-fatal, police-reported crashes in 2014 (the most recent year for which detailed distraction-affected crash data is available), 16 percent were distraction-affected crashes, and resulted in 424,000 people injured.

“The crash data indicate that visual-manual interaction (an action that requires a user to look away from the roadway and manipulate a button or interface) with portable devices, particularly cell phones, is often the main distraction for drivers involved in crashes,” the notice added. “In 2014, there were 385 fatal crashes that involved the use of a cell phone, resulting in 404 fatalities. These crashes represent 13 percent of the distraction-affected fatal crashes or 1.3 percent of all fatal crashes.”

“The Phase 1 Guidelines for OE [original equipment] in-vehicle interfaces … provide the foundation for the proposed Phase 2 Guidelines,” the notice said. “Phase 1 provided specific recommendations for minimizing the distraction potential from OE in-vehicle interfaces that involve visual-manual interaction. Particularly, the Phase 1 Guidelines are focused on recommending acceptance criteria for driver glance behavior where single average glances away from the forward roadway are 2 seconds or less and where the sum of the durations of all individual glances away from the forward roadway are 12 seconds or less while performing a testable task, such as selecting a song from a satellite radio station.

“To the extent practicable, the Phase 2 Guidelines apply the Phase 1 recommendations to the visual-manual interfaces of portable devices (e.g., smartphones, tablets, and navigation devices) and aftermarket devices (i.e., devices installed in the vehicle after manufacture),” the notice added. “Because there are both similarities and differences between OE interfaces and portable devices, the Phase 2 Guidelines primarily focus on portable devices. Due to the functional similarities between aftermarket devices and OE systems, the Phase 2 Guidelines direct manufacturers to the Phase 1 Guidelines.

“The proposed Phase 2 Guidelines present two concurrent approaches for mitigating distraction associated with the use of portable and aftermarket devices by drivers,” the notice elaborated. “First, the proposed Guidelines recommend that portable and OE in-vehicle systems be designed so that they can be easily paired to each other and operated through the OE in-vehicle interface. Assuming that the OE in-vehicle interface conforms to the Phase 1 Guidelines, pairing would ensure that the tasks performed by the driver while driving meet the time-based, eye-glance task acceptance criteria specified in the Phase 1 Guidelines. Pairing would also ensure that certain activities that would inherently interfere with the driver’s ability to safely control the vehicle would be locked out while driving (i.e., the ‘per se lock outs’ referred to in the Phase 1 Guidelines).”

Lock-out activities include those such as the display of video unrelated to driving, the display of certain graphical or photo images, the display of automatically scrolling text, the ability to text message or browse the Internet, and the display of text from books or other documents.

NHTSA said it “encourages all entities involved with the engineering and design of pairing technologies to jointly develop compatible and efficient processes that focus on improving the usability and ease of connecting a driver’s portable device with their in-vehicle system.”

“The second approach recommended by the proposed Phase 2 Guidelines is that portable devices that do not already meet the NHTSA glance and per se lock out criteria when being used by a driver should include a Driver Mode that is developed by industry stakeholders (i.e., Operating System or handset makers),” the notice said.

“The Driver Mode should present an interface to the driver that conforms with the Phase 1 Guidelines and, in particular, locks out tasks that do not meet Phase 1 task acceptance criteria or are among the per se lock outs listed above,” it said. “The purpose of Driver Mode is to provide a simplified interface when the device is being used unpaired while driving, either because pairing is unavailable or the driver decides not to pair. The Guidelines recommend two methods of activating Driver Mode depending on available technology. The first option, and the one encouraged by the agency, is to automatically activate the portable device’s Driver Mode when: (1) the device is not paired with the in-vehicle system, and (2) the device, by itself, or in conjunction with the vehicle in which it is being used, distinguishes that it is being used by a driver who is driving. The driver mode does not activate when the device is being used by a non-driver, e.g., passenger.”

“Due to the close relationship between the Phase 1 and Phase 2 Guidelines, the agency is considering combining the two phases into a single document when the Phase 2 Guidelines are finalized,” the notice said. “The agency requests comment on whether a single combined document would be easier for industry to use and the public at large to reference, or whether separate documents would be simpler.”

NHTSA also noted that “[m]ost states, with the support of NHTSA and the US DOT, have passed laws to limit the use of portable devices while driving. Currently, 46 states, D.C., Puerto Rico, Guam, and the U.S. Virgin Islands ban texting while driving for drivers of all ages. Fourteen states, D.C., Puerto Rico, Guam, and the U.S. Virgin Islands ban drivers of all ages from using hand-held cell phones while driving.” It urged states to continue their efforts.

Comments on the notice are due 60 days after “Federal Register” publication.

Gary Shapiro, president and chief executive officer of the Consumer Technology Association, criticized the proposed guidelines, which he suggested were proposed “de facto regulations.” “Driving while distracted is unsafe and unacceptable – a driver’s highest priority must be maintaining safe control of the vehicle at all times. Tech companies have created driver-assist technologies and apps that reduce or eliminate distractions such as drowsiness, in-car adjustments or texting while driving,” he said. “Popular Bluetooth solutions, driver-monitoring systems and do-not-disturb apps are helping initiate corrective actions when drivers lose focus. The technology industry has also made great strides in raising awareness of the dangers of distracted driving through initiatives such as ‘It Can Wait.’

“NHTSA’s approach to distracted driving is disturbing,” Mr. Shapiro complained. “Rather than focus on devices which could reduce drunk driving, they have chosen to exceed their actual authority and regulate almost every portable device. This regulatory overreach could thwart the innovative solutions and technologies that help drivers make safer decisions from ever coming to market. Further, NHTSA doesn’t have the authority to dictate the design of smartphone apps and other devices used in cars – its legal jurisdiction begins and ends with motor vehicle equipment. In this instance, NHTSA’s regulatory premise is dangerously expansive, representing the worst of government overreach: under their vision, they would have the influence to control the design of technology products down to the fitness tracker worn on a driver. Such a vast and extreme expansion of NHTSA’s authority, if it were to happen, would have to be explicitly granted by Congress.

“This attempt by the outgoing administration to push out highly-questionable, de facto regulations and expand its regulatory reach flies in the face of Congress’ order not to issue any new actions before the new administration takes office,” Mr. Shapiro added. “We encourage NHTSA to rethink its approach on this issue, work with innovators to bring technology solutions to drivers and focus on areas within its jurisdiction – bringing self-driving vehicles to market and eliminating the majority of roadway deaths.”

CTA added that it “supports common-sense measures to address distracted driving, such as state legislation that bans texting while driving and places strict limits on the use of electronics by novice drivers. More, we believe the shift in technology including active collision avoidance and self-driving cars is much more fruitful and important area for NHTSA focus.”

Tom Power, senior vice president and general counsel of CTIA, said, “Drivers must focus their attention on vehicle operation, which is why CTIA and the wireless industry have led the efforts to help combat distracted driving for 20 years. The wireless ecosystem – including wireless providers, device manufacturers and app and content developers – supports continued innovation to develop new technologies that encourage consumers to avoid all distractions, whether they arise from interacting with mobile or embedded devices or other activities like eating. While we share NHTSA’s objective, we believe consumers are best served by encouraging innovation and industry solutions to enhance driver attention. A regulatory path cannot keep pace with those evolving solutions and is the wrong approach for consumers, particularly in this instance where NHTSA lacks congressional authority with respect to mobile devices.”

“With the rapid development of new technologies, we are concerned about whether the Agency guidelines provide sufficient flexibility to adapt in an environment where there are multiple ways drivers can interact with devices: visual, manual, voice, and gesture,” said John Bozzella, president and CEO of the Association of Global Automakers. “Government and industry stakeholders should continue to explore holistic, flexible, and technology-neutral approaches to address driver inattention.”

But Mr. Bozzella added, “The Phase II guidelines demonstrate the Agency’s efforts to address how electronic devices are used by drivers. As people become more connected, it is important that there is a level playing field for all devices, whether they are built into the vehicle or brought in by the driver.”

“Addressing distracted driving holistically is critical – so the Alliance will carefully review these guidelines,” said Wade Newton, a spokesman for the Alliance of Automobile Manufacturers. “Effectively combating distracted driving relies upon building on the steps automakers have already taken to minimize distraction, and that means ensuring our in-vehicle systems can work in tandem with portable devices to promote a safe driving environment. We’ve urged NHTSA to encourage drivers to use the ports provided by Alliance members for tethering handheld devices to vehicle–integrated systems.”

Mr. Newton noted that in 2013, “NHTSA released a study concluding that visual and manual distractions – such as dialing or texting on a handheld phone – increased the risks of getting into a crash by more than three times; so we know that eyes on the road and hands on the wheel remain critical to safe driving. We believe it’s important to encourage drivers to use in-vehicle systems rather than handheld personal electronic devices that were not engineered for use in the driving environment.”

Kara Macek, a spokeswoman for the Governors Highway Safety Association, said the group is “happy to see any momentum toward minimizing driver distraction. The bigger challenge is addressing the insatiable human appetite for these digital devices.” – Paul Kirby, paul.kirby@wolterskluwer.com